Notes | Carving up the Commons: How Software Patents Are Impacting Our Digital Composition Environments

Posted on Oct 5, 2021

DOI 10.1016/j.compcom.2010.06.006 | Author Annette Vee | Date 2010


Dr. Annette Vee looks at the relationship between writing and the encroachment of patent law into the domain of writing (traditionally writing is the domain of copyright law). She examines the arguments from both programmers and legal scholars as to why patents are a poor regime for code by pointing to the fact that creation is more akin to traditional writing endeavors than engineering or manufacturing. Additionally Vee looks to instances where, rather that spur innovation, patent law actively prohibits it. With large swathes of the population able to write code and much of today’s acitivities being mediated through software she argues that patent law is no longer fit for the contexts of code composition.

Quotes and Observations

“Copyright law pays attention to the composition process behind a work of authorship whereas patent law does not. To prove copyright infringement, a rights holder must demonstrate that at some point during composition the accused actually copied the copyrighted work.” (183)

“The conditions of novelty and nonobviousness have been poorly applied to software patents in particular, in part because the patent examiner’s manual does not suggest a review of prior art located in software.” (183)

“Controversies surrounding software patents began as early as the 1960s, when technologies were developing so quickly that President Johnson put together a special commission to review the USPTO’s policies and methods. The Commission, made up of academics, scientists, and industry representatives, recommended in its 1966 report that legislation be introduced to expressly exempt computer programs as patentable subject matter (Samuelson, 1990). No such legislation was passed; however, the USPTO examiner’s guide indicated that computer programs were not patentable under either the “process” or “machine” category described in 35 U.S.C. §101 (Samuelson, 1990). Two Supreme Court rulings in the 1970s affirmed the idea that computer programs were unpatentable; decisions in Gottschalk v. Benson (1972) and Parker v. Flook (1978) both indicated that the algorithms under review were not far enough removed from pure math to make them patentable.” (184)

“The CAFC ruling In Re Alappat (1994) indicated that simply using the terminology of “machine” renders the invention a physical device. The CAFC decision that finally opened the floodgates on software patents was State Street Bank and Trust v. Signature Financial Group (1998), which unambiguously confirmed that an algorithm run by a computer—that is, software—was patentable, as long as it was useful. “ (184)

“The fact that many working programmers do not want the protection that patents give them should be a critical sign that something is wrong with the system.” (185)

“Prior art for software could be located in manuals academic papers, the Internet, closed-code proprietary software, in-house business programs, and even people’s home computers–in other words, too many places to be feasibly searched.” (186)

“The histories of writing and math both yield a number of resource-poor writers and mathematicians such as Frederick Douglass, the writer, or Srinivasa Ramanujan, the self-taught mathematician, who were able to practice their skill to the great benefit of society. Patent law now throws obstacles in the way of the future Douglasses and Ramanujans of programming because it posits the context of software writing to be like engineering or chemistry, with high-investment costs and centralized publishing venues. However, as code literacy becomes more widespread and decentralized, the compositional context for computer code becomes more akin to writing than engineering. “ (187)

“The organization of open-source projects is generally loose, and like Laughlin the independent programmer, open source organizations or individual programmers lack the resources of lawyers and capital that are required to file for patents. Proof of prior art may be in the code, but if it is not in case law or in writing, it is less accessible for the purposes of legal defense. ” (189)

“Code has become infrastructural to the way we compose and, indeed, to the very way that we live our lives. Software mediates almost all of our financial transactions, our communications, and our information outlets and inlets. Behind each program are millions of lines of code written by thousands of professional and hobbyist programmers in hundreds of different languages. Because patent law is nearly impossible for non-specialists to take advantage of or even interpret, it does not mesh well with a decentralized composition scenario.” (190)

References to Read

Gurak, Laura. (1997). Technical communication, copyright, and the shrinking public domain. Computers and Composition, 14, 329-342.

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